Monday, February 4, 2013

Condominium
and Homeowners Associations which
ban or limit the size of pets are under increased attack by homeowners strongly
desire to bring fluffy or killer, a 60 pound pit bull into their homes in
violation of established of the Association. Traditionally it was not difficult
for Association to ban these types of pets and to obtain court injunctions
requiring removal and recovery of attorney's fees and costs. However, in recent
years, a new strategy has been developed by homeowners to keep their strongly
desired pets by utilizing two
sets of laws which may make it impossible for Associations to continue to ban
or limit pets.

The first
law, the Americans
with Disabilities Act,
requires associations to make a reasonable accommodation for disabled people
who need service animals to assist permanently disabled people in their daily
lives. This is a very common need and the law is strongly established in favor
of allowing disabled people to keep their service animals in Association
property regardless of any restrictions provided in the regulations of the
Association. This is typically, for example, the need of a blind person to have
a Seeing Eye dog. These types of accommodations must be made and associations
have limited recourse to ask questions about the disability or the animal’s
qualifications to serve as a service animal.

Physically
disabled persons with the need for service animal are not the issue in
question. Instead, it is a question of a mental disability or emotional
disability that is now the basis for an alleged need keep an animal in the
home. The Fair Housing Act, a federal
law with a similar Florida-based law states that associations must make
reasonable accommodations to assist disabled people in residing within their
community. Based on these laws, homeowners have sought the right to keep pets
to assist them with their emotional and or mental problems claiming that these
animals are Emotional Support Animals and not just pets.

Associations
are being presented letters from mental
health specialists or physicians claiming that Fluffy or Killer is necessary
for the mental or emotional health of the homeowner. The homeowner then
presents the letter to the Association and demands a reasonable accommodation
to allow the pet to reside in the community even though the association bans or
limits the size of pets.

The biggest
problem facing Associations who do not want to allow any pets or pets that
exceed the maximum weight permitted at the Association is the question of
whether the requesting homeowner is truly in need of medically based mental or
emotional support which can be provided by an emotional support animal. For
example, you can spend $114 over the Internet and obtain an emotional support
letter from Chilowee Psychological Services. Simply answer a few questions and
out pops your letter. Given the easy
ability to obtain a letter many Associations have adopted a comprehensive
package of documents, solely for the purposes of weeding out the truly disabled
from those seeking to game the system solely to get a pet.

In Sun Harbor V. Bonura, the Florida
appellate court in 2012 held that in order for a homeowner to prevail on a denialof
allowing an emotional support animal, the following tests must be met: (i) the
homeowner must have a handicap; (ii) the
Association must have knowledge of
the handicap; (iii)
that an accommodation may be
necessary to afford the homeowner an equal opportunity to use and enjoy the
dwelling; (iv) that the accommodation is reasonable; and (v) the associations
refusal to make the requested accommodation.
Ultimately, the Appellate Court found that the homeowner did not meet
the required tests because the handicap was not sufficiently evident to require
the support
for the need for the pet,
and the letter from the professional did not give enough information to the
Association to understand the basis for the handicap or the need for
accommodation.

When
confronted with a request for accommodation, Associations must also keep in
mind the need to limit excessive requests for information. A recent federaldecision
in the Middle District of Florida (Bhogaita
v. Altamonte Heights Condominium Assn., Inc.) the court granted partial
summary judgment to the pet owner on the grounds that the associations
multiple, detailed requests regarding the homeowners mental and physical
conditions far exceeded that permitted under the Federal Fair Housing Act. Simply put, one (or possibly two) detailed requests
should be sufficient for the Association to determine whether and accommodation
is required and challenging the physician repeatedly for more information will
not likely be permitted.

Based on the
foregoing, Associations
should be proactive in adopting emotional support animal policies and
procedures (before the next request) that requires, but is not limited to, an application,
and an affidavit from a licensed person as part of any approval process of an
emotional support animal. Failure to properly accommodate disabled persons
can lead to an expensive and time-consuming lawsuit, as well as recovery of
attorney's fees and costs.

Michael Posner, Esq.,
is a partner in Ward Damon a mid-sized real estate and business oriented law
firm serving all of South Florida, with offices in Palm Beach County. The firm represents numerous Associations and
can assist in adopting emotional support procedures for their clients as well
as all other Condo and HOA matters. They
can be reached at 561.842.3000, on the web at www.warddamon.com
and by e-mail at mjposner@warddamon.com

About Me

I am a Florida Board Certified Real Estate Attorney with 30+ years of residential and commercial real-estate experience.
I am an equity partner in Ward, Damon, Posner, Pheterson & Bleau, a mid-sized law firm serving all of South Florida, with three offices in Palm Beach County. Our firm specialize in and can assist in buying, borrowing and selling property throughout South Florida. I can be reached at 561.594-1452, mjposner@warddamon.com or www.warddamon.com